Bullying is the repeated, unreasonable behavior towards someone at work and this creates a risk to health and safety. However, bullying does not include reasonable management action.
What is Reasonable?
The Fair Work Commission is quite reluctant to conclude that performance management is bullying if the manager has acted reasonably. In a 2014 case (The Applicant v General Manager and Company C  FWC 3940), the employee complained that the general manager bullied her by micromanaging her, raising his voice, using an aggressive tone, and undermining her by dealing directly with members of her team. Commissioner Roe found that the general manager had an overall responsibility for the department and had to deal with finding ways to improve its economic performance. He stated that the following actions by the general manager constituted as ‘reasonable management action carried out in a reasonable manner’:
- Making direct inquiries, without involving the applicant, to members of her team;
- Raising concerns about the team’s budget;
- Forcefully communicating verbally and with body language that the applicant’s way of interacting with him was unacceptable (however, the Commissioner did state that he would have reconsidered this if this behavior was repetitive); and
- Requiring more frequent reporting (however, daily reporting would have constituted ‘intimidatory micro-management’).
Although the Commissioner was critical of the general manager’s refusal for the employee to have a support person with her, it was found that the general manager’s actions were not ‘repeated incidents of unreasonable behavior’ and therefore did not constitute bullying.
Scenario: You have been working at the company for 3 years now. Your work has always been up to standard for management. Now, a new manager has come in and you’ve been having problems under his leadership. He constantly points out your mistakes infront of your colleagues during meetings, he stops at your desk to look at your screen and ‘cracks’ jokes that you better be doing work and not browsing social media, and he has starting setting deadlines that you cannot possibly meet. 2 months after the new manager started, you were called into his office and informed that you were being placed on a performance improvement plan (PIP) and that “If you don’t improve, the consequences will be ugly”. You have become very stressed and upon seeing a doctor was diagnosed as suffering from anxiety from work related stress.
Can the performance management be considered bullying?
Considering Scenario 1, it is possible that the PIP constitutes bullying as. On the face of it, the manager’s behavior does appear to be intimidating, humiliating and he has tried to place unreasonable expectations. More importantly, the behavior has been repeated and has created a risk to health and safety. In a scenario like this, the Union can help you get in touch with the employer to raise your concerns about being placed on a performance improvement plan (PIP) by someone who has been exhibiting bullying behavior. In most cases, we assist you in drafting up a formal bullying complaint and ask that the PIP be put on hold while the bullying claim is investigated.
If you are concerned that you are being bullied under the pretext of performance management, please contact the Workplace Advice and Support team on firstname.lastname@example.org.
This publication is considered general information only and is not intended to be relied upon as legal advice or as a substitute for legal advice. If you require advice on your specific situation, please contact the Workplace Advice & Support team at Professionals Australia.
About the author – Saraswathy Varatharajullu
Saraswathy Varatharajullu is a National Industrial Officer and Lawyer within the Workplace Advice and Support team at Professionals Australia. This position has a primary focus on assisting members with individual employment law matters.